Arizona Judge Shoots Down RIAA Theories

NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"

Unfortunately this probably won't end here

[NonSequor]

This decision only means that the law currently on the books can't be interpreted in the way the RIAA wants.

However, looking at the history of the RIAA's lobbying efforts, it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.

Once again a court

[geekoid]

shows that distribution is the crime, not downloading.

Re:Unfortunately this probably won't end here

[91degrees]

Yes, but there are anti-RIAA forces that are a lot more organised than they were in pre-DMCA days. I don't think many people on Slashdot really cared about copyright laws until the MPAA sued over DeCSS. These days, the EFF has quite substantial support, politicians realise that there are actually quite a lot of people who think current levels of copyright are too strong, and we're actually pretty organised (albeit in an ad-hoc chaotic way).

Not evisceration, but a major blow

[Todd Knarr]

I don't think it eviscerates the RIAA's claims, but it's certainly a major blow to their theories. As I read it, the judge is saying that merely making them available isn't automatically infringement. This makes sense if you think of an analogy. If I put a book down on the table on my front porch while I go inside to get a drink, and someone comes along and takes it, I surely made it available but nobody in their right mind would claim I intended to distribute it to the thief. Compare that to the case where I put a whole bunch of books on a table out by the sidewalk with a sign "Free books, take as many as you want.". I suspect the judge here is ruling along similar lines: it's not sufficient for the RIAA to claim that the files were merely available, they have to claim the files were (reasonably) knowingly made available for the purposes of infringing distribution. OTOH, if the files were available to the public, but were put where they were for a non-infringing purpose and the defendant wouldn't reasonably (given their knowledge) expect the files to be open for the taking by anyone else, then the RIAA's claim fails. Which to me sounds reasonable, so seems more reasonable than either of the extreme positions take by the RIAA or the P2P advocates.

Re:Make the RIAA Download/Upload

[Enleth]

That gave me an idea... What if someone recorded a few minutes of belching and farting, named it after some song RIAA seeks, clipped it to the lenght and packed with some white noise in the background so that the file size roughly matched and put it up on BT? You see, P2P clients publish a checksum of every file and every expert appointed by the court will admit that an MD5 or SHA checksum is a sufficient proof of the file spotted by RIAA being the same as the file promptly presented to the court by the defendant, with a claim of copyright over it as well (that is, if a few minutes of belching and farting can be deemed creative to be copyrighted at all). Wouldn't that show quite well, how baseless RIAA's "evidence" is?

Re:Once again a court

[QuantumG]

There's no "crime" involved, it's a civil matter.

Re:Not evisceration, but a major blow

[tattood]

Regarding your analogy, that does not apply to P2P. When you load a P2P client on your computer, the 2 purposes of the software are to download software from other people running similar software, and to then upload those files to other people running the similar software. So essentially running P2P is like saying "Free music, take as many as you want". Can you give an example of "making music files available" without expecting them to be distributed?

Now, I have not RTF 17-page paper, so this may not be related to this case...

Re:Unfortunately this probably won't end here

[Anonymous Coward]

it's extremely likely that we'll soon be seeing a law that criminalizes making copyrighted files available.

That would completely shut down the internet (not to mention appearance in public of everything which is copyrighted -- better not drive a car, or read a book on a subway train) as all files are copyrighted and all files are "made available" for everything which exists on the internet. It would instantly create trillions and trillions and trillions of dollars of liability. And 13 year old downloaders will become part of tens of millions of copyright trolls collecting 6 figure sums against groups like the RIAA. It would be a total legal systemic meltdown. Hooray, the copyright abolitionists win!

If you can access and see the file anywhere on the internet (either legally or illegally) you can make that file "available" merely by being connected to the internet through no fault of your own. And businesses would definitely be infected with viruses and worms that made files "available".

But I guess it would also be nice to see businesses sued for $150,000 per identity stolen from lost laptops making data "available".

Re:He got by with a little help from his friends..

[jd]

Needs to be lock'n'key, or there are too many syllables in the last line.

Re:I have to say...

[CodeBuster]

It was not so much that a transaction had not taken place, but rather that the RIAA had failed to prove, in point of fact, that a transaction had actually taken place (i.e. it is not enough that the law could have been broken, it must be shown that it actually was broken). I thought that the following commentary from senior EFF lawyer Fred von Lohmann was especially informative:

"If the RIAA wants to keep bringing these suits and collecting big settlements, then they have to follow the law and prove their case. It's not enough to say the law could have been broken. The RIAA must prove it actually was broken."

It has been said that "reason is the light of the law" and we certainly saw that light shine through today in this decision.

Law clerk

[wile_e_wonka]

Just to let you know a bit more about how the courts work--
More than likely this opinion was written by a "judicial law clerk" who graduated from law school last June (likely toward the top of his class). Judges vary widely, some write their own opinions, some collaborate with their law clerks, and some let their clerks write the memos, glance through them and mail it out. Most judges fall somewhere between the last two. The prior decision (today's decision was a reconsideration of an earlier decision in the RIAA's favor) was dated last August, which means it is very possible it was written by last year's law clerk (once again, these things vary, but most clerkships are one year long and start sometime between Late July and early September.
Just thought I'd let you think about that.

Re:Unfortunately this probably won't end here

[Anonymous Coward]

So the kicker to get it to end here?

And I quote: "we're actually pretty organized (albeit in an ad-hoc chaotic way)"

This quote sums it up perfectly for the first amendment! We have the freedom to gather peacefully. This is an unalienable right. As such, to target the groups with lawsuits, and criminal proceedings should be looked at as an attempt by these organizations to circumvent the government. Alas, I say, the actions of the RIAA, and MPAA amount to nothing more than terrorism.

For my justification, I will point out, in the patriot act, that hacking is terrorism when its use is to somehow alter a political situation. Thus, it can be seen that those who have been targeted are in the same category as any other victim of terrorism. Time then, that we wake up, and defeat this enemy of freedom, this subverter of America? I'm as serious as the AIDS epidemic. Try me.

Re:What is thie score now?

[LithiumX]

They won quite a few. It's that very success that woke people up to the reality of what this group was doing.

On a side note, my wife took a look at the ruling I was reading and asked how I could understand any of that. My reply that judicial rulings are usually a far easier read than affidavits and motions got me thinking...

Has anyone else noticed, on their end, that actually reading through court documents on the web has given them a firmer grasp of legal terms and syntax than they had before? For instance, I still only have a layman's understanding of law, but what used to look like meaningless legal mumbo-jumbo is starting to look more and more like verbose (but logical) legal whitepapers and RFC's.

Well, -usually- logical. (*cough*SCO*cough)
br. Either way, do you think that the increasing availability of court papers results in at least some increase in legal literacy?

Re:Not copyright infringement...

[the_leander]

Ok, so MediaSentry aren't allowed to download the files because they're not authorised to do so. Fine.

Where was that evidence?

Seems to me that no matter which way the RIAA go RE mediasentry, their case is hosed...

Either they can't get the files, or it's a completely legal transaction. Superb!

Re:Not evisceration, but a major blow

[ricree]

In this case, the defendant claimed that he was using Kazaa to legally distribute non music files, and that due to some unknown cause the music became available. Perhaps not the most likely scenario in the world, but this was a ruling on a motion by the RIAA for summary judgment. In order for the motion to be granted, the RIAA has to show that they would win the case even if all allegations in dispute were interpreted in the light most favorable to the defendant. Since that was not the case here, the motion was denied.
The big news, however, was that the judge utterly rejected the RIAA's claim that merely making the files available online was in and of itself infringement. In other words, the RIAA must show that there is a good chance an actual transfer did take place.

Re:What is thie score now?

[electrictroy]

Thomas Jefferson said laws should be written in plain English, because laws exist to serve the People, and need to be understood by the same.

Makes sense to me. Why insert a bunch of flowery language just to say, "It is wrong to enter another man's household."